Case Note & Summary
The appellant, Ghodganga Sakhar Karkhana, a registered cooperative society, filed a suit for specific performance of an agreement dated 12 August 1991 for sale of gat no.815 in village Nhavare, Taluka Shirur, District Pune, against the respondent, Sopan Sitaram Kokade. The trial court dismissed the suit for specific performance but directed the respondent to refund Rs.35,000 received as earnest money with 12% interest per annum from the respective dates of payment. The appellant appealed against the denial of specific performance, while the respondent did not file any cross-appeal or cross-objection. The appellate court dismissed the appeal and set aside the order of refund. The appellant then filed a second appeal. The High Court framed the substantial question of law as whether the appellate court could set aside the refund order in the absence of cross-appeal or cross-objection. The court held that the appellate court exceeded its jurisdiction by modifying the decree in favour of the appellant (plaintiff) without any challenge from the respondent. The order of refund was restored, and the second appeal was allowed. The court did not interfere with the dismissal of the specific performance claim.
Headnote
A) Civil Procedure - Appellate Jurisdiction - Modification of Decree Without Cross-Appeal - Order 41 Rule 22, Code of Civil Procedure, 1908 - The appellate court, while dismissing the plaintiff's appeal for specific performance, set aside the trial court's order directing refund of earnest money with interest, even though the defendant had not filed any cross-appeal or cross-objection. Held that the appellate court exceeded its jurisdiction by modifying the decree in favour of the appellant (plaintiff) without any challenge from the respondent (defendant). The order of refund was restored. (Paras 1-5) B) Specific Performance - Refund of Earnest Money - Agreement to Sell - The trial court dismissed the suit for specific performance but directed refund of Rs.35,000 with 12% interest. The appellate court dismissed the appeal and set aside the refund order. Held that the appellate court could not deprive the plaintiff of the refund relief in absence of cross-objection. (Paras 1-5)
Issue of Consideration
Whether the appellate court could set aside the order of refund of earnest money granted to the plaintiff in the absence of any cross-appeal or cross-objection by the defendant.
Final Decision
Second appeal allowed. The order of the appellate court setting aside the refund is quashed and set aside. The trial court's order directing refund of Rs.35,000 with 12% interest per annum is restored. No order as to costs.
Law Points
- Appellate court cannot modify decree in favour of appellant in absence of cross-appeal or cross-objection
- Order 41 Rule 22 CPC
- Section 96 CPC
- Section 100 CPC
